Da Silva Borges v. Bondi

145 F.4th 27

• Court: Court of Appeals for the First Circuit
• Decided: July 18, 2025
• Docket: 24-1695
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1695

MARCOS DA SILVA BORGES; ELIANE MARIA SILVA TEIXEIRA BORGES; A.S.B.; and D.L.S.B.,

Petitioners,

v.

PAMELA J. BONDI, Attorney General,*

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Rikelman, Howard, and Aframe, Circuit Judges.

Annelise M.J. de Araujo and Stefanie Fisher, with whom Araujo & Fisher, LLC was on brief, for petitioners.

Allison Frayer, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Sarah A. Byrd, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

July 18, 2025

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela J. Bondi is automatically substituted for former Attorney General Merrick B. Garland as Respondent. RIKELMAN, Circuit Judge. In this immigration case,

Marcos Da Silva Borges and his family claim that the Immigration

Judge (IJ) applied the incorrect standard of proof during their

removal proceedings. The Borges family members contend that,

because they were charged with inadmissibility rather than

deportability, the government had the burden to prove that they

were noncitizens by "clear, unequivocal, and convincing" evidence,

which they claim is a higher standard than merely "clear and

convincing" evidence. The family members also argue that the

government presented insufficient evidence to meet this higher

standard. The Board of Immigration Appeals (BIA) denied their

appeal, and they petitioned our court for review.

Our recent decision in Rosa v. Bondi, ___ F.4th ___,

2025 WL 1912130 (1st Cir. Jul. 11, 2025), resolves this appeal and

requires us to rule in favor of the Borges family. Rosa concerned

the same legal issues presented in this case and held that the

"clear, unequivocal, and convincing" standard applies in removal

proceedings of individuals charged with inadmissibility, and that

this standard imposes a higher burden of proof on the government

than the "clear and convincing" standard. Because the agency

applied the incorrect legal standard in evaluating whether the

Borges family was removable, we grant the petition and remand to

the agency for further proceedings consistent with this opinion.

- 2 - I. BACKGROUND

The lead petitioner, Marcos Da Silva Borges, his wife

and co-petitioner, Eliane Maria Silva Teixeira Borges, and their

two young children, A.S.B. and D.L.S.B., entered the United States

in October 2021, near San Luis, Arizona. At the time, A.S.B. was

seven years old and D.L.S.B. was two years old.

An immigration officer examined the Borges family

members upon entry and, the next day, formally placed them into

removal proceedings by issuing notices to appear (NTAs). In the

NTAs, the government alleged that the family members were citizens

of Brazil and charged them as inadmissible and removable as

"alien[s] present in the United States without being admitted or

paroled" under section 212(a)(6)(A)(i) of the Immigration and

Nationality Act (INA). See INA § 212(a)(6)(A)(i), 8 U.S.C.

§ 1182(a)(6)(A)(i); see also INA § 101(a)(3), 8 U.S.C.

§ 1101(a)(3) (defining the term "alien" as "any person not a

citizen or national of the United States").

The Borges family appeared with counsel at a hearing

before the IJ in September 2022. That same day, the Department of

Homeland Security (DHS) submitted to the IJ an Enforce Alien

Removal Module View Encounter Summary ("EARM summary") for each

family member as evidence of their alienage. Each EARM summary

included information about the individual family member, including

his or her name, date of birth, A-number (a unique identification

- 3 - number assigned by DHS), physical characteristics, and alleged

citizenship. Each EARM summary also included an "I-213 Narrative"

that described the family member's encounter with Customs and

Border Patrol.

The Borges family denied all the factual allegations and

the charges of removability. The family members also moved to

terminate the removal proceedings, claiming that the government

did not meet its burden to demonstrate that they were noncitizens

because the EARM summaries were "incoherent and notably fail[ed]

to reference any passport or other documentation to demonstrate

[their] alienage." Specifically, they claimed that the EARM

summaries omitted the name of the officer who examined them, the

disposition of the examination, the signatures of both the border

patrol agent and examining officer, any mention of a foreign

passport or other identity document, and any information about

their last entry into the United States and their place of

permanent residence.

The government did not file a written response to the

family's motion to terminate but did orally respond during a later

hearing with the IJ in November 2022. It argued that the EARM

summaries did not require officer signatures, did list each

individual's "country of origin" and entry date, and should be

accepted by the IJ because they are "printout[s] from a Government

database, which [are] inherently [] business record[s]."

- 4 - The next day, the IJ denied the family's motion to

terminate the removal proceedings in a form order. The IJ found

that the government "met . . . its burden of proving by clear and

convincing evidence that [the Borges family is] removable as

charged." And, in January 2023, the IJ ordered the family's

removal after confirming during another hearing that they were not

seeking voluntary departure or any other form of relief from

removal. In the removal order, the IJ explained that they were

"removable/inadmissible as charged in the Notice to Appear" based

on their "admissions and concessions."

The Borges family appealed to the BIA. The family

members claimed that the IJ clearly erred in finding them removable

based on their "admissions and concessions" when they, in fact,

denied the NTAs' allegations and charges and moved to terminate

the removal proceedings. The BIA agreed and remanded to the IJ

for a "full decision" that "explains the evidentiary basis for

[its] decision to sustain the removal charge[s] [and] addresses

the merits of the [family's] motion to terminate."

The IJ issued a new decision in October 2023. After

concluding that the government had the burden to prove the family

members' alienage "by clear and convincing evidence," the IJ found

that the government satisfied its burden by submitting the EARM

summaries. According to the IJ, the summaries were "sufficiently

detailed and there is nothing to indicate that the information

- 5 - contained therein came from anyone other than the [Borges family

members]." Based on these findings, the IJ again denied the

family's motion to terminate and sustained the charges of

removability under section 212(a)(6)(A)(i) of the INA.

The Borges family appealed once more to the BIA, raising

two arguments. First, the family contended that the IJ applied

the wrong standard of proof when it required the government to

prove alienage only by "clear and convincing" evidence rather than

by "clear, unequivocal, and convincing" evidence. Second, the

family argued that the government did not meet this higher standard

of proof because the EARM summaries were unreliable and omitted

key information. And the family emphasized that the EARM summaries

could not be authenticated because they lacked a signature from

the agent who prepared them. They also highlighted that the forms

included only generic narratives. For example, the family pointed

out that the EARM summary for their then-two-year-old child claimed

that the child "'indicated' that they understood [their] right [to

communicate with a Consular Officer] but declined to speak with

anyone at this time."

The BIA rejected the family's arguments about the

standard of proof and the unreliability of the EARM summaries and

dismissed the appeal in July 2024. In doing so, it adopted and

affirmed the IJ's decision. The BIA first found that the IJ

applied the correct evidentiary standard to evaluate alienage

- 6 - because "clear and convincing" and "clear, unequivocal, and

convincing" were the same standard. It also concluded that the IJ

did not clearly err in finding that the EARM summaries were

sufficiently reliable, such that the government had met its burden

to prove alienage. Finally, because the family had conceded proper

service of the NTAs and did not seek any forms of relief from

removal, the BIA found that the IJ correctly denied the motion to

terminate the removal proceedings.

The Borges family filed a timely petition for review.

II. STANDARD OF REVIEW

"Where, as here, the BIA's decision rests primarily on

the IJ's decision, we review the two decisions as a unit" and

"refer to the IJ and the BIA jointly as 'the agency.'" Rosa, ___

F.4th ___, 2025 WL 1912130, at *2 (quoting Garcia Oliva v. Garland,

120 F.4th 1, 5 (1st Cir. 2024)). We review the agency's legal

conclusions, including determinations of the appropriate standard

of proof, de novo. See id. We review factual findings under the

substantial evidence standard, accepting the agency's factual

determinations if they are "supported by reasonable, substantial,

and probative evidence on the record considered as a whole." Id.

(quoting Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir.

2013)).

- 7 - III. DISCUSSION

As we previewed above, the Borges family raises two

primary issues on appeal. First, the family claims that the agency

erred in failing to require the government to prove alienage by

"clear, unequivocal, and convincing" evidence. Further, the

family contends that the "clear, unequivocal, and convincing"

standard is more demanding than the "clear and convincing" standard

that the agency applied. Second, the family argues that the

government could not rely on the EARM summaries to satisfy the

applicable standard.

We agree with the Borges family that the agency should

have applied the "clear, unequivocal, and convincing" standard and

that this standard is more demanding than the "clear and

convincing" standard. See Rosa, ___ F.4th ___, 2025 WL 1912130,

at *3-4. Thus, we remand to the agency so that it can determine

in the first instance whether the EARM summaries meet that higher

standard. For that reason, we do not consider the family's

argument about the unreliability of the summaries.

In Rosa, we reviewed similar arguments and reached two

critical holdings, both of which support the family's contentions.1

We initially issued the opinion in Rosa on March 13, 2025. 1

Subsequently, the government filed a petition for panel rehearing. Although the government had "previously argued [in Rosa] that the 'clear and convincing evidence' standard applied," it shifted its position in its petition for panel rehearing to "argue[] that this

- 8 - First, we concluded that the government has the burden to

demonstrate the alienage of individuals charged with

inadmissibility, like the Borges family members, by "clear,

unequivocal, and convincing" evidence. See id. at *3. To do so,

we relied on the Supreme Court's decision in Woodby v. Immigration

& Naturalization Service, which held that the government must

"establish the facts supporting deportability by clear,

unequivocal, and convincing evidence." 385 U.S. 276, 277 (1966);

see Rosa, ___ F.4th ___, 2025 WL 1912130, at *3; see also

Spyropoulos v. Immigr. & Naturalization Serv., 590 F.2d 1, 2, 4

(1st Cir. 1978) (in a case concerning deportation based on

excludability/admissibility, citing Woodby as imposing "clear,

unequivocal, and convincing" standard of proof on the government).

Second, we also held in Rosa that "clear, unequivocal,

and convincing" was a more demanding standard than "clear and

convincing." See Rosa, ___ F.4th ___, 2025 WL 1912130, at *3-4.

We quoted the Supreme Court's assertion that "[t]he term

'unequivocal,' taken by itself, means proof that admits of no

doubt, a burden approximating, if not exceeding, that used in

criminal cases." Id. at *3 (alteration in original) (quoting

circuit's case law" required the application of the "clear, unequivocal, and convincing evidence" standard. Rosa, ___ F.4th ___, 2025 WL 1912130, at *3 n.4. In response, we issued a modified opinion in Rosa on July 11, 2025. We refer only to the reissued opinion here.

- 9 - Addington v. Texas, 441 U.S. 418, 432 (1979)); see also, e.g.,

Matter of Patel, 19 I. & N. Dec. 774, 783 (BIA 1988) (also citing

Addington to explain that "[t]he clear and convincing standard

imposes a lower burden than the clear, unequivocal, and convincing

standard . . . because it does not require that the evidence be

unequivocal or of such a quality as to dispel all doubt.").

Looking to the text of the INA, we further noted that the statute

imposes a "clear and convincing" standard of proof in some

situations and a "clear, unequivocal[,] and convincing" standard

in others, an indication that "the word 'unequivocal' likely adds

something to the government's burden." Rosa, ___ F.4th ___, 2025

WL 1912130, at *4 (citing, as examples, 8 U.S.C. § 1229a(c)(3) and

8 U.S.C. § 1229a(b)(5)(A), respectively). Finally, we reasoned

that we must assume that Congress was aware of Supreme Court case

law when it amended the INA. See id. Thus, we held that we were

"duty-bound to conclude" that "clear, unequivocal, and convincing"

was a higher standard of proof than "clear and convincing." Id.

Based on those two holdings, we granted the petition for review in

Rosa, vacated the agency's order, and remanded to the agency for

further proceedings to determine whether the government had met

its burden under the correct standard. See id. at *4-5.

The government has failed to provide any basis for

distinguishing this case from Rosa. Although Rosa was initially

decided in mid-March 2025, about five weeks after oral argument in

- 10 - this case, and then modified in mid-July 2025 after panel

rehearing, the government did not submit a 28(j) letter contending

that we should not apply Rosa. And in its briefing to us, it

presented only one argument that we did not consider in Rosa: it

claimed that the Supreme Court equated the two standards of proof

at issue here in California ex rel. Cooper v. Mitchell Bros.' Santa

Ana Theater, 454 U.S. 90 (1981). But the Court did no such thing

in Cooper, which concerned the standard of proof required by the

First Amendment for obscenity claims. See id. at 90. The

government relies on a single sentence and footnote in Cooper, in

which the Court stated that "[t]hree standards of proof are

generally recognized" and noted that both "clear and convincing"

and "clear, unequivocal, and convincing" represent "a higher

probability than is required by the preponderance-of-the-evidence

standard." Id. at 93 & n.6 (emphasis added). This statement,

however, does not undermine (let alone implicitly repudiate) the

Supreme Court's determination in Addington, as described above,

that "[t]he term 'unequivocal,' taken by itself, means proof that

admits of no doubt, a burden approximating, if not exceeding, that

used in criminal cases." 441 U.S. at 432. After all, Cooper cites

Addington with approval. See Cooper, 454 U.S. at 93. And, as we

said in Rosa, we are bound to take Addington "at face value" and

treat the "clear, unequivocal, and convincing" standard as more

- 11 - demanding than the "clear and convincing" standard. Rosa, ___

F.4th ___, 2025 WL 1912130, at *4.

Thus, Rosa controls here.

IV. CONCLUSION

For all these reasons, we grant the petition, vacate the

BIA's order, and remand to the agency for further proceedings

consistent with this opinion.

- Concurring Opinion Follows -

- 12 - HOWARD, Circuit Judge, concurring. I join the panel

opinion, as I agree that we are bound by our recent decision in

Rosa v. Bondi, ___ F.4th ___, 2025 WL 1912130 (1st Cir. Jul. 11,

2025). But I have doubts about the correctness and wisdom of the

direction that our law is taking in its identification of the

appropriate burden of proof in cases such as this one.

The Immigration and Nationalization Act ("INA")

recognizes two categories of noncitizens (or "aliens" as termed in

the statute)2 who may be subject to removal proceedings: those who

have not been admitted3 into the United States and are found to be

"inadmissible" pursuant to 8 U.S.C. § 1182, and those who have

been admitted and are found to be "deportable" under 8 U.S.C.

§ 1227. See 8 U.S.C. § 1229a(e)(2). While the INA provides that

"the [government] has the burden of establishing by clear and

convincing evidence that, in the case of an alien who has been

admitted to the United States, the alien is deportable," 8 U.S.C.

§ 1229a(c)(3)(A), there is no comparable provision establishing

the government's burden in proving the alienage of a person charged

2 As defined by the INA, "alien" refers to "any person not a citizen or a national of the United States." 8 U.S.C. § 1101(a)(1). 3 The term "admitted" means "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A).

- 13 - with inadmissibility.4 See Rosa, ___ F.4th ___, 2025 WL 1912130,

at *3. The Supreme Court's decision in Woodby v. INS, 385 U.S.

276 (1966), fills this gap and requires that alienage must be

proven by "clear, unequivocal, and convincing evidence." As I

explain further below, however, the Supreme Court's cases suggest

that Woodby's "clear, unequivocal, and convincing" burden is

substantively equivalent to the "clear and convincing" burden that

we commonly encounter in immigration and other civil contexts.

But to hold that the former imposes a higher burden on the

government than the latter creates a questionable and likely

perverse disparity between the protections afforded potentially

deportable aliens and those provided to individuals charged with

inadmissibility.

I.

A review of several earlier Supreme Court decisions

provides context for how the Woodby Court understood the "clear,

unequivocal, and convincing" standard of proof. The Court first

imposed this standard in the immigration context in a case

involving denaturalization. See Schneiderman v. United States,

320 U.S. 118, 125 (1943). In Schneiderman, the Court considered

whether the petitioner's naturalization had been properly revoked

Once the government proves that the individual charged is 4

an alien, the burden shifts to the alien to prove that "he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged." 8 C.F.R. § 1240.8.

- 14 - twelve years after it was first granted. 320 U.S. at 119-20.

Analogizing to the standard applicable in the case of a public

grant of land, the Court held that "[t]o set aside such a grant

[of citizenship] the evidence must be 'clear, unequivocal and

convincing' -- 'it cannot be done upon a bare preponderance of

evidence which leaves the issue in doubt." Id. at 125 (quoting

Maxwell Land-Grant Case, 121 U.S. 325, 381 (1887) (concerning

standard of proof to declare void a patent granting tract of

land)).5 But the Schneiderman Court was not wed to this exact turn

of phrase in defining the appropriate standard of proof. In fact,

throughout its opinion the Court repeatedly articulated the

government's burden without using the word "unequivocal" at all,

variably describing the burden as requiring "evidence of a clear

and convincing character," id. at 123; "the clearest sort of

justification and proof," id.; "more than a bare preponderance of

the evidence," id. at 125; and "such a preponderance of the

evidence that the issue is not in doubt," id. at 158.6

5 In the same breath, the Schneiderman Court also cited to United States v. Rovin, 12 F.2d 942 (E.D. Mich. 1926). See Schneiderman, 320 U.S. at 125. Significantly, Rovin explained that to set aside a grant of citizenship, the government must establish "by clear and convincing evidence" that the certificate of citizenship was obtained by fraud. 12 F.2d at 944. 6 In cases after Maxwell Land-Grant Case, the Supreme Court was similarly varied in the language that it used to describe the proof necessary to revoke land patents, often omitting the word "unequivocal" altogether. See, e.g., Wright-Blodgett Co. v. United States, 236 U.S. 397, 403 (1915) (citing Maxwell Land-Grant

- 15 - At bottom, no matter the precise verbiage used by the

Court, Schneiderman made plain that "when the rights are precious

and when they are conferred by solemn adjudication," they "should

not lightly be revoked." Id. at 125. In such cases, a

"preponderance of the evidence which leaves the issue in doubt"

would not do. See id.

Two decades after Schneiderman, the Court extended the

Schneiderman standard to all deportation proceedings. See Woodby,

385 U.S. at 285-86 & n.16. Confronted with establishing the degree

of proof required of the government, the Woodby Court ruled out

the reasonable-doubt standard, because "a deportation proceeding

is not a criminal prosecution." See id. at 285. Still, the Court

found it inappropriate to permit removal from the country based on

a mere preponderance of the evidence. See id. Instead, as in the

case of a denaturalization, the Court applied the "clear,

unequivocal, and convincing" standard of proof that was "no

Case for proposition that government must prove its case by "proof which produces conviction" while also referring to standard as "by proof of a clear and cogent character"); United States v. Am. Bell Tel. Co., 167 U.S. 224, 251, 262 (1897) (affirming that Maxwell Land-Grant Case requires proof that is "clear, unequivocal, and convincing" but later characterizing standard as requiring that fraud must be proven by "clear, convincing, and satisfactory" evidence); United States v. Iron Silver Mining Co., 128 U.S. 673, 676 (1888) (stating that patent for land may only be set aside "by clear and convincing proof" of fraud).

- 16 - stranger to the civil law."7 Id. "No less a burden of proof is

appropriate in deportation proceedings," the Court reasoned, since

similar or greater hardships are present in deportation

proceedings as in denaturalization proceedings. Id. at 286.

Unlike denaturalization, the Court explained, deportation often

results in immediate expulsion and "many resident aliens have lived

in this country longer and established stronger family, social,

and economic ties here than some who have become naturalized

citizens." Id.

It is true that Woodby and Schneiderman did not directly

address whether the phrases "clear and convincing" and "clear,

unequivocal, and convincing" are synonymous. However, seven

months prior to Woodby, the Supreme Court had done just that,

clarifying the "clear, unequivocal, and convincing" burden by

reciting the familiar definition of "clear and convincing"

7 The Court acknowledged that the "clear, unequivocal, and convincing" standard "or an even higher one" was routinely used in civil cases involving issues of fraud, lost wills, and oral contracts to make bequests. Woodby, 385 U.S. at 285 n.18 (citing 9 Wigmore, Evidence § 2498 (3d ed. 1940)). Yet by the time Woodby was decided, courts also imposed the "clear and convincing" standard of proof -- sans the term "unequivocal" -- in fraud cases, thereby further suggesting that the Woodby Court viewed the standards to be equivalent. See, e.g., Van Weel v. Winston, 115 U.S. 228, 247 (1885) (noting that proof of fraud in making a contract must be "clear and convincing"); Iron Silver Mining Co., 128 U.S. at 676 (holding that government must provide "clear and convincing proof" that patent was obtained fraudulently); see also 9 Wigmore, Evidence § 2498 (Chadbourn rev. 1981) (collecting Sixth and Second Circuit cases requiring "clear and convincing" evidence of fraud).

- 17 - evidence. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

737 (1966). Interpreting Section 6 of the Norris-LaGuardia Act,

29 U.S.C. § 106, the Court found the statute's "clear proof"

burden, while undefined, must "signify a meaning like that commonly

accorded such similar phrases such as 'clear, unequivocal, and

convincing proof.'" Id. at 735, 737. "Under this standard," the

Court elaborated, the burdened party "is not required to satisfy

the criminal standard of reasonable doubt" but must "persuade by

a substantial margin, to come forward with 'more than a bare

preponderance of the evidence to prevail.'" Id. at 737 (quoting

Schneiderman, 320 U.S. at 125). Against the backdrop of

Schneiderman's variable parlance, this contemporaneous definition,

along with Woodby's comparison of this standard to other civil

actions' intermediate standards of proof shortly thereafter,

suggests that the Court employed these two articulations of the

intermediate standard of proof interchangeably. Indeed, the Court

had before and continued to freely reword the standard from case

to case throughout the twentieth century. Compare Baumgartner v.

United States, 322 U.S. 665, 670-71 (1944) (addressing whether the

government had presented "clear, unequivocal, and convincing"

evidence that petitioner fraudulently procured certificate of

citizenship), with Pullman-Standard v. Swint, 456 U.S. 273, 286

n.16 (1982) (describing Baumgartner as involving question of

"whether or not the findings of the two lower courts satisfied the

- 18 - clear and convincing standard of proof necessary to sustain a

denaturalization decree" (emphasis added)).

In Rosa, we concluded that Addington v. Texas, 441 U.S.

418 (1979), mandates the opposite conclusion. Rosa, ___ F.4th

___, 2025 WL 1912130, at *3-4. The question presented in Addington

was what degree of proof the Fourteenth Amendment requires to

involuntarily commit an individual to a state mental hospital.

441 U.S. at 419-20. In summarizing the "three standards or levels

of proof," the Court recognized that the "intermediate standard,

which employs some combination of the words 'clear,' 'cogent,'

'unequivocal,' and 'convincing,'" is appropriate in cases where

the interests at stake "are deemed to be more substantial than

mere loss of money." Id. at 424. The Court specified that, in

particular, the "clear, unequivocal, and convincing" standard has

been used to "protect particularly important individual

interests," such as those implicated in deportation and

denaturalization proceedings. Id. (collecting cases). It also

noted that "[t]he term 'unequivocal,' taken by itself, means proof

that admits of no doubt, a burden approximating, if not exceeding,

that used in criminal cases." Id. at 432 (footnote omitted). On

that basis, the Court concluded that state courts are free but not

required to use the "unequivocal" standard of proof in civil

commitment cases, as "clear and convincing" proof is sufficient to

satisfy due process -- implicitly distinguishing the two. See id.

- 19 - If Addington were the final word on this issue, I might

well agree that it suggests a departure by the Supreme Court from

the cases that view the two formulations at issue here as

synonymous. But three years after Addington, the Supreme Court

made clear in Santosky v. Kramer, 455 U.S. 745 (1982), that it

still viewed the two formulations as substantively equivalent.

Once again, the Court sought to determine the appropriate burden

of proof on the government -- this time for purposes of terminating

parental rights. Santosky, 455 U.S. at 747-48. In surveying how

states had answered this question, the Court found that many state

courts had imposed standards employing varying expressions,

including "clear and convincing proof," "clear, cogent, and

convincing evidence," and, significantly, even "clear and

unequivocal" proof. Id. at 749 & n.3 (first quoting Ramsey Cnty.

Welfare Dep't v. Young (In re Rosenbloom), 266 N.W.2d 888, 889

(Minn. 1978); then quoting In re Sego, 82 Wash.2d 736, 739 (1973)

(en banc); and then quoting DS v. Dep't of Pub. Assistance & Soc.

Servs. (In re X), 607 P.2d 911, 919 (Wyo. 1980)). But despite the

difference in phrasing used by each state, the Court cited all

these cases as examples of where states had "required proof by

'clear and unequivocal' evidence or its equivalent." Id. (emphasis

added).

That the Supreme Court viewed these formulations of the

intermediate standard of proof as equivalent is also evident from

- 20 - its equating of their purposes. As acknowledged above, it is not

unfair to conclude that Addington distinguished the "clear,

unequivocal, and convincing" burden from other variants of the

intermediate standard on the basis that it is necessary to protect

"particularly important" interests. See 441 U.S. at 424. But

Santosky did not attempt to draw such a line, instead stating that

the "clear and convincing" burden protected the same interests.

455 U.S. at 756. The Court explained that:

This Court has mandated an intermediate standard of proof -- "clear and convincing evidence" -- when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." . . . [T]he Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma."

Id. (emphasis added) (quoting Addington, 441 U.S. at 424-25, 426).

As examples of such "government-initiated proceedings" where the

clear and convincing standard is used, the Court pointed to the

civil commitment, deportation, and denaturalization proceedings at

issue in Addington, Woodby, and Schneiderman, respectively. See

id. at 756-57; see also Cruzan v. Director, Mo. Dep't of Health,

497 U.S. 261, 282-83 (1990) (reiterating Santosky's description of

the "clear and convincing evidence" burden of proof and explaining

that the standard had been required in deportation,

- 21 - denaturalization, civil commitment, and termination of parental

rights proceedings). In doing so, the Court plainly acknowledged

that the individual interests at stake in Woodby were dutifully

protected by the "clear and convincing" standard of proof.

In my view, while Addington may have briefly raised the

possibility that the term "unequivocal" possesses some talismanic

properties that elevate the government's burden beyond that

required by the "clear and convincing" standard, Santosky put any

notion of that distinction to rest. It therefore comes as little

surprise that the Supreme Court has repeatedly used "clear and

convincing" interchangeably with "clear, unequivocal, and

convincing" even after Addington. See, e.g., E.M.D. Sales, Inc.

v. Carrera, 604 U.S. 45, 51 (2025) (citing Schneiderman for

proposition that "the Court has held that the government must

satisfy a clear-and-convincing-evidence standard in order to take

away a person's citizenship"); Rivera v. Minnich, 483 U.S. 574,

580 (1987) ("[A]s we have said in explanation of the need for clear

and convincing evidence in certain proceedings, 'rights once

confirmed should not be lightly revoked.'" (quoting Schneiderman,

320 U.S. at 125)); INS v. Stevic, 467 U.S. 407, 424 n.19 (1984)

(citing Woodby to note that "[t]he Board [of Immigration Appeals]

is, of course, quite familiar with the clear-and-convincing

standard, since the Government is held to that standard in

deportation proceedings"); Herman & MacLean v. Huddleston, 459

- 22 - U.S. 375, 389 (1983) (explaining that the Court has "required proof

by clear and convincing evidence where particularly important

individual interests or rights are at stake" and citing Santosky,

Addington, and Woodby as examples); Pullman–Standard, 456 U.S. at

286 n.16 (noting that "clear and convincing" was the "standard of

proof necessary to sustain a denaturalization decree").

Semantically, this conclusion makes sense. Addington

seemingly distinguished "unequivocal" as "proof that admits of no

doubt," 441 U.S. at 432, but I fail to see how this definition

meaningfully differs from what we have always understood the term

"clear" to mean in the "clear and convincing" burden of proof.

For example, we have previously observed that "'[c]lear' has been

defined as '[o]bvious beyond reasonable doubt,' and 'clear and

convincing proof' has been described as 'proof beyond a reasonable,

i.e., a well-founded doubt' or else as 'more than a preponderance

but less than is required in a criminal case.'" Tatro v. Kervin,

41 F.3d 9, 15 (1st Cir. 1994) (quoting Black's Law Dictionary 227

(5th ed. 1979)); see also Webster's Third International Dictionary

419 (1993) (defining "clear" as "having no doubt, uncertainty, or

confusion of mind"); Radio Corp. of Am. v. Radio Eng'g Lab'ys, 293

U.S. 1, 2, 8 (1934) (interpreting various articulations of standard

of proof, including "clearest proof -- perhaps beyond reasonable

doubt," to mean "clear and cogent evidence" (first quoting Aus.

Mach. Co. v. Buckeye Traction Ditcher Co., 13 F.2d 697, 700 (6th

- 23 - Cir. 1926))). I worry that, in concluding that the term

"unequivocal" alone engenders this heightened burden of proof, we

have effectively diminished the unadorned, but heretofore high,

"clear and convincing" standard to equate it to something closer

to the "dubious" preponderance of the evidence burden of proof.

Cf. Microsoft v. i4i LP, 564 U.S. 91, 101-02 (2011) (explaining

that preponderance of the evidence is too "dubious" a basis to

deem a patent invalid and therefore "clear and convincing" is the

proper standard); Schneiderman, 320 U.S. at 125 (rejecting use of

"bare preponderance of the evidence which leaves the issue in

doubt" (emphasis added) (quoting Maxwell Land-Grant Case, 121 U.S.

at 381)).

For these reasons, I do not think it was error for the

agency to have omitted the word "unequivocal" in its articulation

of the governing legal standard, so long as the evidence in the

record was sufficient to meet the "clear and convincing" burden of

proof.8

To the extent that the INA is relevant to our understanding 8

of "clear, unequivocal, and convincing evidence," I am not so persuaded that the statute's imposition of "clear, unequivocal, and convincing evidence" in some places and "clear and convincing" in others requires Rosa's holding. See Rosa, ___ F.4th ___, 2025 WL 1912130, at *4 (citing 8 U.S.C. § 1229a(c)(3) and 8 U.S.C. § 1229a(b)(5)(A)). As Rosa acknowledges, "we are ultimately interpreting not the [INA] but, rather, a judicial standard mandated by Woodby." Id. Additionally, given that we must assume Congress was aware of Supreme Court precedent such as Santosky when amending the INA in 1996, see id., we similarly should

- 24 - II.

Accepting that we as a panel are bound to conclude that

"clear and convincing" imposes a lower burden then "clear,

unequivocal, and convincing," I add just a few additional

observations about the consequences of this holding.

While at times Congress has seen fit to treat

inadmissible aliens and deportable aliens differently, this

statutory differential treatment is, as it should be, to the

advantage of potentially deportable aliens. See Vazquez Romero v.

Garland, 999 F.3d 656, 659 (9th Cir. 2021) ("Aliens who have been

lawfully admitted to the country generally receive more protection

under immigration law than aliens who are seeking admission to the

United States."); Barton v. Barr, 590 U.S. 222, 243 (2020)

(Sotomayor, J., dissenting) (explaining that "the grounds for

inadmissibility are broader than those for deportability" and that

the separate categories and procedures used for each categories of

noncitizens tend to "treat[] deportable noncitizens more

generously than inadmissible noncitizens"). For example, while

the government bears the burden of proof in establishing that an

admitted alien is deportable by "clear and convincing" evidence,

see 8 U.S.C. § 1229a(c)(3)(A), the onus is on the alien charged

with inadmissibility to show that he or she "is clearly and beyond

conclude that Congress was aware the Court viewed the two variants of the intermediate standard as imposing equivalent burdens.

- 25 - doubt entitled to be admitted and is not inadmissible," id.

§ 1229a(c)(2)(A). It is therefore paradoxical to

conclude -- whether by our construction or by Congress's conscious

choice -- that the government now bears a lower burden in removing

a lawfully admitted noncitizen then it does in proving the alienage

of an individual who attempts to enter the United States without

any hint of authorization to be here beyond his own say-so.9

"[I]n any given proceeding, the minimum standard of

proof tolerated by the due process requirement reflects not only

the weight of the private and public interests affected, but also

a societal judgment about how the risk of error should be

distributed between the litigants." Santosky, 455 U.S. at 755.

It follows that the more important the individual interest at stake

is, the higher the burden of proof is required to deprive a person

of that interest. See id. (comparing preponderance of the

evidence, which demonstrates "society's 'minimal concern with the

outcome'" of the case," with "stringency" of criminal standard

In reissuing our opinion in Rosa, we limited our holding to 9

Woodby's application to persons charged with inadmissibility, leaving for another day the question of whether it similarly governed the degree of proof required to establish alienage of a person charged with deportability. See Rosa, ___ F.4th ___, 2025 WL 1912130, at *3. But regardless of how that question is ultimately answered, my concern remains that interpreting "clear and convincing" to impart a lower burden than "clear, unequivocal, and convincing" curtails the protections afforded noncitizens with lawful admission in the name of rendering greater safeguards to those with no demonstrable attachment to the United States.

- 26 - that "bespeaks the 'weight and gravity' of the private interest

affected" (quoting Addington, 441 U.S. at 423, 427)). And so, it

is entirely at odds with Woodby's and Schneiderman's original

motivation for requiring a heightened standard of proof in

immigration proceedings to permit removal of admitted noncitizens

under a lower standard of proof. As with naturalized citizens,

admitted aliens have been granted several privileges in being

present on our soil that, once awarded, "should not lightly be

revoked." See Schneiderman at 125. While admission into the

United States is of course not identical to the grant of

citizenship, Woodby emphasized that the hardship of removal is no

less severe given the immediacy of deportation and, more

importantly, the close family, political, and social ties that

resident noncitizens have made in this country. See 385 U.S. at

286.

This is not to say that the law permits alienage to be

established by less than clear and convincing evidence, for with

the question of alienage comes the presumption of citizenship that

can only be overcome by a heightened level of proof. But it is

likewise important that noncitizens already admitted to the United

States, and having clearly established ties to this country, be

afforded the same protections that Woodby originally provided

them.

- 27 - III.

In short, we are bound by our precedent, and I therefore

join the panel's thoughtful and narrow decision. I am concerned,

however, that the direction in which our cases are trending is

misaligned with the interests at stake. By affording greater

protections to persons charged with inadmissibility, we diminish

those protections afforded lawfully admitted persons.

- 28 -